E.G., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fourth District Court of Appeal reversed a minor's grand theft conviction because the state failed to present sufficient evidence that the stolen cell phone was worth $300 or more, the threshold for grand theft. The court affirmed the restitution order, which requires only a preponderance of the evidence standard rather than proof beyond a reasonable doubt.
The court reversed the grand theft conviction because the state failed to present sufficient evidence of the phone's market value at $300 or more. Replacement cost cannot be used unless the state first proves that market value cannot be satisfactorily ascertained, which the state did not do. The court affirmed the restitution order because it requires only preponderance of the evidence, not proof beyond a reasonable doubt.
[1] A conviction for grand theft requires sufficient evidence that the value of the stolen property meets the statutory threshold.
[2] Market value of stolen property, for purposes of theft statutes, is determined by the value at the time and place of the offense.
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Join FLexlaw to unlock all legal intelligence“the state failed to offer sufficient evidence that the value of the stolen cell phone was $300 or more”
Statement of the fundamental reason for reversing the grand theft conviction
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Join FLexlaw to unlock all legal intelligenceA child appellant was charged with grand theft for stealing a cell phone. The victim had the original sales receipt for the phone but the state never …
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We reverse appellant’s conviction of grand theft because the state failed to offer sufficient evidence that the value of the stolen cell phone was $300 or more. § 812.014(2)(c), Fla. Stat. (2014). Although the victim testified that he had his original sales receipt, the state neglected to ask -him about the 'original purchase price of the phone, a fact which, when combined with testimony about the phone’s age, condition, and how it had been customized, would have supported a,finding that the “market value” of the phone “at the time and place of the offense” was at least $300. § 812.012(10)(a)(l), Fla. Stat. (2014).
The state may not rely on the evidence presented about the replacement cost of the phone. Replacement cost “ ‘is not appropriate under the theft statute unless the state first presents evidence that the market-value could not be satisfactorily ascertained.’” Tindal v. State, 145 So.3d 915, 920 (Fla. 4th DCA 2014) (quoting A.D. v. State, 30 So.3d 676, 678 (Fla. 3d DCA 2010)). “ ‘This step [is] necessary to justify the value of the loss being ascertained by the cost of replacement of the property.’” A.D., 30 So.3d at 678 (quoting Robinson v. State, 686 So.2d 1370, 1373 (Fla. 5th DCA 1997)). The state presented no evidence that the market value of the phone could not be satisfactorily ascertained.
We reverse the finding of grand theft and remand for the entry of a conviction for petit theft. The circuit court shall reconsider its ruling- on the violation of probation in light of the petit theft conviction. We affirm the restitution order because “the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence,” and not beyond a reasonable doubt. § 775.089(7), Fla. Stat. (2014); see § 985.437, Fla. Stat. (2014); A.G. v. State, 718 So.2d 854, 855 (Fla. 4th DCA 1998) (stating that restitu*1154tion in a juvenile proceeding under section 39.054(l)(f), Florida Statutes (1995), the predecessor to current section 985.437, “is treated the same as restitution in adult proceedings under section 775.089”). Under the lower standard of proof, there was sufficient evidence of value to support the restitution award.
Reversed in part, affirmed in part, and remanded.-
.GROSS, MAY and CONNER, JJ., concur.'
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Citator
Cited By
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Cheyenne Gonzalez v. State, 275 So. 3d 766 (Fla. 3d DCA 2019)…State first presents evidence that the market value could not be satisfactorily ascertained. This step [is] necessary to justify the value of the loss being ascertained by the cost of replacement of the property”) (quotation omitted); E.G. v. State, 180 So. 3d 1152 (Fla. 4th DCA 2015) (holding that the State was not entitled to rely on replacement cost of stolen phone because it presented no evidence that the market value of the phone could not be satisfactorily ascertained). Therefore, the victim’s testimony…
Authorities Cited
- A.G. v. State, 718 So. 2d 854 (Fla. 4th DCA 1998)
- A.D. v. State, 30 So. 3d 676 (Fla. 3d DCA 2010)
- Jarvis Robinson v. State, 686 So. 2d 1370 (Fla. 5th DCA 1997)
- Tindal v. State, 145 So. 3d 915 (Fla. 4th DCA 2014)